Citation Nr: 21064490 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-22 076A DATE: October 20, 2021 ORDER A rating in excess of 70 percent for depressive disorder is denied. FINDING OF FACT The Veteran's depression disorder had manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for depressive disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to January 1970 and from October 1972 to December 1973. This case is on appeal from a January 2012 rating decision. In a March 2017 rating decision, the RO increased the rating to 70 percent. The issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran died in March 2017. The appellant is his surviving spouse who was granted substitution to continue the appeal in April 2019. In July 2021, the Veteran's wife and two of his children testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 70 percent for depressive disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Under 38 C.F.R. § 4.130, most service-connected mental health disabilities are rated pursuant to the General Rating Formula for Mental Disorders. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under DC 9434, a 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Board notes that the records contain various global assessment of functioning (GAF) scores. However, GAF scores have been found to be unreliable and not sufficient evidence for rating a psychiatric disorder. See Golden v. Shulkin, 29 Vet. App. 221, 226 (2018). Analysis In a May 2015 VA Form 9, the appellant reported that, before his death, the Veteran had gross impairment in thought processes and communication. She also reported that the Veteran was experiencing suicidal thoughts, nightmares, hallucinations, and hypervigilance that prevented him from going to social functions. Furthermore, she reported that the Veteran was disorientated, experienced memory loss, and was diagnosed with dementia. At the July 2021 Board hearing, the appellant reported that the Veteran suffered from his mental conditions for many years, experiencing depression, sadness, and hallucinations. Furthermore, the appellant reported that he was unable to go to family functions and handle his own financial affairs. The Veteran's post service medical records show that he received a diagnosis and had been treated for depressive disorder since 2007. Additionally, the records shows that he received a diagnosis of Alzheimer's Disease and Dementia around 2013 and treated thereafter. In December 2012, the Veteran was afforded a VA psychological evaluation. The psychologist reviewed the claims file. The Veteran reported experiencing isolation, fatigue, depressed mood, irritability, memory loss, feelings of worthlessness. He denied suicidal or homicidal ideations. The psychologist diagnosed the Veteran with major depressive disorder (MDD). The psychologist reported symptoms of mild memory loss, impaired judgement and abstract thinking, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, flattened affect, panic attacks, and depressed mood. The psychologist found that the Veteran's MDD resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. In January 2015, the Veteran was afforded another VA psychological evaluation. The psychologist reviewed the file. The psychologist reported that the Veteran scored in the "Definite Fail" range for a cognitive screening test. The psychologist explained that adults with severe posttraumatic stress disorder (PTSD), MDD, and substance abuse diagnoses perform significantly better than the Veteran did in this test. The psychologist found that the Veteran's memory loss is not related to his service connected depression and that the cognitive screening test results could be attributed to his dementia. Furthermore, the psychologist explained that in order for depression to account for the Veteran's poor performance in the test, he would likely have needed to be in a state of prolonged, severe, and total catatonia. Moreover, the psychologist explained that because the Veteran did not show psychomotor retardation, his dementia was the only diagnosis which would explain the memory and thinking impairment. The Veteran again was afforded a psychological evaluation in April 2016, which was the most recent VA examination prior to his death. The psychologist reviewed the Veteran's claims file. During this examination, the psychologist also spoke with the Veteran's wife because the Veteran was limited to providing his name and a few social pleasantries. The examiner reported that the Veteran's wife assisted him with activities of daily living. The appellant reported that the Veteran experienced sad and anxious moods, increasing frustration, and trembling. The psychologist diagnosed the Veteran with two current psychiatric conditions, MDD and anxiety disorder, and found that he could not distinguish between the symptoms of each diagnosis. He reported that the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, memory loss, impaired judgment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. Moreover, the psychologist noted that the Veteran showed significant signs of dementia. The psychologist noted that, while the Veteran showed signs of total occupational and social impairment, the significant increase in cognitive impairment since the December 2012 psychological evaluation and inability to manage his finances were likely due to the Veteran's dementia diagnosis. The psychologist also found that the Veteran's depressive disorder results in occupational and social impairment with deficiencies in most areas. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's depressive disorder, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that a rating in excess of 70 percent is not warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). In this regard, none of the examining psychologists have found that his depression was severe enough to result in total occupational and social impairment. In addition, the evidence of record does not show that the Veteran's depressive disorder resulted in gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, occupation, or name. While the January 2015 and April 2016 psychologists reported the presence of severe memory loss and cognitive and social impairment, the January 2015 psychologist explained why he attributed such severe symptoms to dementia rather than depressive disorder. In addition, the April 2016 psychologist found that the Veteran's depressive disorder symptoms did not worsen after the December 2012 evaluation that showed impairment with deficiencies in most areas rather than total impairment. He also found that the Veteran's severe social impairment and inability to manage financial affairs were due to severe dementia symptoms rather than depressive disorder. Therefore, the Board finds that the clinical evidence clearly shows that the Veteran's severe cognitive and social impairment was due to his nonservice-connected dementia rather than the service-connected depressive disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Furthermore, as the Veteran was married, total social impairment is not shown as no reading of total social impairment would include marriage. In sum, the evidence does not show that the Veteran experienced total occupational and social impairment. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and a rating in excess of 70 percent for depressive disorder is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.